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BEFORE THE SECRETARY OF STATE STATE OF COLORADO CASE NO. OS 20050006 AGENCY DECISION IN THE MATTER OF THE COMPLAINT FILED BY LELAND GILBERT REGARDING ALLEGED CAMPAIGN AND POLITICAL FINANCE VIOLATIONS BY ALLIANCE FOR COLORADO FAMILIES. History of the Case This case concerns a complaint filed March 28, 2005 with the Secretary of State by Leland Gilbert against Alliance for Colorado Families (“ACF”). The complaint alleges that the Defendant ACF is a political committee and that it accepted 32 contributions of more than $500 per House of Representatives election cycle as prohibited under Colo. Const. art. XXVIII, Section 3(5). The Secretary of State referred the complaint to an Administrative Law Judge (“ALJ”) as provided by Colo. Const. art. XXVIII, Section 9(2)(a). Prehearing conferences were held on April 14, 2005 and on May 6, 2005. The parties agreed that no hearing was immediately required as the issues were primarily legal ones. Instead, the parties agreed to have the ALJ determine whether a violation occurred. The parties agreed this could be done via a stipulated set of facts and motions for summary judgment. In the event a violation was proven, the parties agreed that a separate hearing would be held on the issue of proper sanction. After the completion of briefing, the ALJ, on July 5, 2005, issued an Order Granting Summary Judgment as to Liability. The Order concluded that ACF was liable for a violation of Section 3(5). A hearing as to appropriate sanction was therefore held August 30, 2005. At the hearing and throughout this case Scott Gessler, Esq represented the Complainant. Edward Ramey, Esq. represented ACF throughout this case and at the hearing as well. In order that the issues in this matter may be clear to the reader, the ALJ will restate the matters determined in the Order Granting Summary Judgment as to Liability. This Agency Decision will then discuss the issue of proper sanction. Issues Presented The first issue is whether ACF is a “political committee.” ACF spent money for a radio advertisement likening Colorado House of Representatives candidate Kent Lambert to the character Eddie Haskell from the 1950’s television show Leave it to Beaver. If the payment for the radio ad was done to “support or oppose the nomination or election of one or more candidates,” ACF is a “political committee.” This quoted language comes from the definition of “political committee” at Colo. Const. art. XXVIII, Section 2(12)(a). Section 3(5) prohibits a political committee from accepting contributions in excess of $500 from any one person. It is undisputed that ACF accepted more than $500 from a single person prior to the expense on the radio ad. ACF argues that even if paying for the radio ad made it a political committee, all of its contributions preceded this expense. According to ACF, the fact that the radio ad may have made it a political committee cannot be applied retroactively in time to contributions received before it bought the ad. ACF also argues that its major purpose is not the support or opposition of candidates, but rather promoting public awareness of issues of importance to Colorado families, which includes the election of individuals to state or local public office. ACF’s opening brief at 6. It argues that this single incident of paying for the radio ad is insufficient to show that its “major purpose” is the nomination or election of a candidate. It argues that this “major purpose” must be shown under the case of Buckley v. Valeo, 424 U.S. 1, 79 (1976). ACF argues that absent such evidence, a sanction imposed for such an advertisement would be unconstitutional. Findings of Fact Based upon the evidence, the ALJ makes the following Findings of Fact: The Stipulated Facts of the Parties 1. The Stipulated Facts provide as follows: 1) The Alliance for Colorado Families paid for the production of a radio advertisement entitled “Eddie Haskell.” 2) The Alliance for Colorado Families paid radio stations to broadcast the Eddie Haskell advertisement. 3) The Alliance for Colorado Families expended more than $1,000 for the production and broadcast of the Eddie Haskell advertisement. 4) The Eddie Haskell advertisement was broadcast multiple times on radio stations in October, 2004, November, 2004, or both. 5) The audience that heard the radio broadcasts included voters in Colorado State House District 18. 6) A true and accurate transcript of the Eddie Haskell advertisement is contained in Exhibit 1. 7) A true and accurate recording of the Eddie Haskell advertisement is contained on the readable compact disc at Exhibit 2. 2 8) The exhibits contained in the complaint filed by Gilbert are true and correct copies of reports filed by the Alliance for Colorado Families, and accurately reflect the contributions received by the Alliance for Colorado Families. 2. Exhibit 1 reads as follows: Script of “Eddie Haskell” Radio Advertisement Eddie Haskell. You know the smarmy little guy on Leave It To Beaver? Now we’ve got our own Eddie Haskell right here in Colorado Springs, House candidate Kent Lambert. And his latest little scheme is the kind of dirty trick only an Eddie Haskell could think of. Kent Lambert and his dirty tricksters decided that twenty-four hour surveillance of his opponent was a nifty idea. Just hire a private investigator and stake out the opponent’s home, twenty-four seven. So why did he do it? Because he knows that twenty-two- year resident Mike Merrifield has been fighting for our community for a long time. Representative Merrifield has been fighting for affordable health care for all and good schools for our kids. We saw right through Eddie Haskell when he said, “Gee, you look lovely tonight, Mrs. Cleaver.” And we see through Kent Lambert’s adolescent game of hide the ball. This election is too important for childish tricks. We need mature leadership. Don’t let Eddie Haskell, er, Kent Lambert, represent you in the State House. Paid for by the Alliance for Colorado Families. 3. Although not specifically stipulated to, the ALJ makes additional findings of fact as these facts are uncontested by the parties: a. ACF is an organization or a group of two or more persons, including natural persons. b. Kent Lambert and Mike Merrifield were opponents in a general election in November 2004 for a seat in the Colorado House of Representatives representing State Representative District 18. The seat represented at least some part of Colorado Springs. 3 c. In its opening brief at p. 8, ACF states that the production of the advertisement is included in the October 29, 2004 payment to Skew Media. Based on this uncontested fact, the ALJ finds that October 29, 2004 is the earliest date established by the evidence that ACF made an expenditure to support or oppose a candidate. There is insufficient evidence of any expenditure prior to that date. d. There is insufficient evidence that ACF received any contributions after it made this expenditure. 4. The ALJ finds in addition that the radio advertisement was made to oppose the election of Kent Lambert and to support the election of Mike Merrifield to the Colorado House of Representatives. Aside from criticizing Lambert by likening him to Eddie Haskell, the ALJ makes this finding of fact based on the following: a. The advertisement identifies Lambert as a “house candidate.” b. It identifies Merrifield as his “opponent.” c. It identifies Merrifield as a “Representative,” one who has been “fighting for affordable healthcare for all and good schools for our kids.” d. It ties the election to the behavior ascribed to Lambert when it says: “This election is too important for childish tricks. We need mature leadership.” e. It tells listeners not to let Lambert represent them in the State House. 5. As disclosed in Stipulated Fact 8 and the exhibits contained in the complaint, ACF accepted numerous contributions from persons or organizations in excess of $500. 6. As disclosed in Stipulated Fact 8 and the exhibits contained in the complaint the contributions were made during the election cycle for the November 2004 election. Conclusions of Law Based on the foregoing Findings of Fact, the ALJ enters the following Conclusions of Law Is ACF is a Political Committee? 1. Colo. Const. art. XXVIII, Section 2(12)(a) defines a “political committee:” “Political committee” means any person, other than a natural person, or any group of two or more persons, including natural persons that have accepted or made contributions or expenditures in excess of $200 to support or oppose the nomination or election of one or more candidates. 2. The parties do not dispute, and the ALJ has found, that ACF is an organization or a group of two or more persons. As such, ACF is a “person” as defined in Colo. Const. art. XXVIII, Section 2(11). 4 3. Also undisputed, based on Stipulated Fact 8 and the exhibits contained in the complaint, ACF has accepted numerous contributions in excess of $200. The radio advertisement, as agreed to in Stipulated Fact 3, is an expenditure of greater than $1,000. 4. The question then is whether ACF accepted the contributions or made the expenditures to support or oppose the nomination or election of one or more candidates. The ALJ has found in Finding of Fact 4 above and concludes here that the expenditure was made to support Merrifield and to oppose Lambert in the election. 5. The ALJ therefore concludes that ACF became a “political committee” as defined in Colo. Const. art. XXVIII, Section 2(12)(a) on October 29, 2004: the time it made the expenditure for the production of the advertisement.

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